Full Judgment Text & Judicial Ruling

2020 P L C (C.S.) 1558 [Islamabad High Court] Before Miangul Hassan Aurangzeb, J ALTAF HUSSAIN Versus FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another F.A.O. No.47 of 2018, decided on 30th July, 2019. (a) Federal Public Service Commission Ordinance (XLV of 1977)--- ----S.7(3)(d)---Limitation Act (IX of 1908), Ss. 5, 14 & 29(2)---Federal Public Service Commission---Appointment against the post of Section Officer---Appeal---Limitation---Condonation of delay---Candidature of appellant was rejected being ineligible to take part in the examination---Appellant moved review petition but same was dismissed---Validity---Appeal before High Court could be filed only against Commission's decision on a candidate's review petition---Limitation for filing an appeal before High Court was thirty days---Appellant had filed present appeal after six years---Appellant had moved application for condonation of delay and Court should decide the same first and if such application was allowed then case should be decided on merits---Section 5 of Limitation Act, 1908, did not apply on its own force to special or local laws but had to be made applicable to such laws through legislation---Legislature had not made S.5 of Limitation Act, 1908, specifically applicable to appeals filed under S.7(3)(d) of Federal Public Service Commission Ordinance, 1977---No provision of Limitation Act, 1908, had been made applicable to any proceedings under Federal Public Service Commission Ordinance, 1977, by the said Ordinance---Mere fact that Federal Public Service Commission Ordinance, 1977, did not expressly exclude the application of S.5 of Limitation Act, 1908, to the proceedings conducted under the said Ordinance would by itself not extend the application of S.5 of Limitation Act, 1908 to such proceedings---Federal Public Service Commission Ordinance, 1977 was a special law and application of S.5 of Limitation Act, 1908 had been excluded by S.29(2) of the said Act---Appellant's application under S.5 of Limitation Act, 1908, for condonation of delay in filing the present appeal was not maintainable in circumstances---Section 14 of Limitation Act, 1908, did not come to the aid of appellant who had been prosecuting his remedy against an appealable order before a wrong forum---Delay in filing appeal could not be condoned under S.14 of Limitation Act, 1908 in circumstances---Application for condonation of delay and appeal were dismissed.

Muhammad Amir v. Muhammad Sarfraz 2019 CLD 523; Muhammad Khalid Naeem v. Habib Bank Limited 2018 CLD 1027; Raja Karamat Ullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Noor Muhammad v. Assistant Commissioner, Vehari 1986 SCMR 292 and Abdul Aziz v. Additional Settlement Commissioner 1984 SCMR 1562 ref. Mahmud Alam v. Mehdi Hussain PLD 1970 Lah. 6; Government of Balochistan v. Abdul Rashid Langove 2007 SCMR 510; Haji Hussain Haji Dawood v. M.Y. Kherati 2002 SCMR 343; Rahim Jan v. Securities and Exchange Commission of Pakistan 2002 SCMR 1303; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Allah Dino v. Muhammad Shah 2001 SCMR 286; Riaz Hussain v. Board of Revenue 1991 SCMR 2307; Ali Muhammad v. Fazal Hussain 1983 SCMR 1239; Furqan Habib v. Government of Pakistan 2006 SCMR 460; Syed Haji Abdul Wahid v. Syed Siraj Uddin 1998 SCMR 2269; Khan Muhammad v. Senior Superintendent of Police 1989 SCMR 589; Sherein v. Fazal Muhammad 1995 SCMR 584; Sibtain Raza Naqvi v. Hydrocarbon Development 2012 SCMR 377; Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 and Ameerullah Khan v. Mst. Nisar Begum PLD 2016 Pesh. 49 rel. (b) Maxim--- ----"Ignorantia juris non excusat" : Ignorance of law is no excuse. Sayyid Murtaza Ali Pirzada for Appellant. Muhammad Nadeem Khan Khakwani, learned Assistant Attorney-General, Mahmood Ullah Khan, A.D. (Legal), F.P.S.C. for Respondents. Date of hearing: 4th July, 2019. JUDGMENT MIANGUL HASSAN AURANGZEB, J.----Through the instant appeal under Section 7(3)(d) of the Federal Public Service Commission Ordinance, 1977 ("the 1977 Ordinance"), the appellant, Altaf Hussain, impugns the order dated 30.06.2011, whereby the Federal Public Service Commission ("F.P.S.C.") dismissed his review petition against the order dated 28.05.2011. Vide the said order dated 28.05.2011, F.P.S.C. rejected the appellant's candidature for the Section Officers' Promotional Examination-2010 ("S.O.P.E.-2010"). The position taken by F.P.S.C. in the said order was that the appellant was ineligible to take part in the said examination on account of being an employee of the Federal Board of Revenue's subordinate office, i.e. the Regional Tax Office, Lahore. SECTION OFFICERS' PROMOTIONAL EXAMINATION-2010: 2. The facts essential for the disposal of the instant appeal are that on 04.10.2010, F.P.S.C. issued a public notice, announcing that S.O.P.E.-2010 for the selection of fifty (50) posts of Section Officers (BS-17) would be held with effect from 28.12.2010. The said advertisement provided that all civil servants who had put in a minimum of eight years of service in BS-11 to BS-16 in, inter alia, the Federal Secretariat and attached departments, would be eligible for the examination. The said advertisement also provided that the officers from, inter alia, the Directorate General of Inspection and Audit (Income Tax/Customs and Federal Excise) and Additional Directorate of Inspection (Direct Taxes) Faisalabad, were not eligible. Employees of other departments which had not been declared as attached departments in terms of Schedule-III of Rules of Business, 1973, were also not eligible. 3. When the said advertisement was issued, the appellant was serving as an Auditor (BS-14) in the Federal Board of Revenue ("F.B.R."). The appellant participated in the examination and as per the result of the successful candidates announced by F.P.S.C. on 23.04.2011, his name was at Serial No.67. 4. Prior to the commencement of interviews of the candidates who had passed the written examination, F.P.S.C., vide letter dated 19.05.2011, informed the appellant that his representation against the rejection of his candidature had been thoroughly examined, but turned down due to lack of "all attested documents". Furthermore, the appellant was informed as to F.P.S.C.'s decision to call him for a personal hearing on 25.05.2011. Thereafter, vide memorandum dated 21.05.2011, F.P.S.C. informed the appellant that his candidature for S.O.P.E.-2010 had been rejected on the ground that "the Department in which [he was] working is subordinate office". F.P.S.C. also informed the appellant as to its decision to call him for personal hearing on 25.05.2011. The said letter dated 21.05.2011 was issued by the R&I Branch of F.P.S.C. on 23.05.2011 with Diary No.2923. The appellant claims that when the said letter was issued, he was serving at Lahore, and had not received it by 25.05.2011. Be that as it may, the appellant managed to attend the personal hearing on 25.05.2011 since F.P.S.C.'s earlier letter dated 19.05.2011 had also required him to attend the personal hearing on 25.05.2011. During the personal hearing, the appellant brought along with himself the attested copies of the required documents. It was during the personal hearing that the appellant was informed that he was not eligible for S.O.P.E.-2010 on the ground that the department in which he was working was a subordinate office. 5. After the personal hearing, F.P.S.C., vide letter dated 28.05.2011, informed the appellant that his candidature had been rejected on the ground that he was ineligible on account of being an employee of F.B.R.'s subordinate office, i.e. Regional Tax Office, Lahore. The appellant was also informed that if he desired, he could file a review petition against the said decision. 6. The appellant filed Writ Petition No.1783/2011 before this Court, praying for a direction to F.P.S.C. to withdraw the rejection of his candidature and to include him in the selection process. The appellant had also assailed F.B.R.'s letter dated 21.04.2011, according to which F.B.R. was an attached department of the Revenue Division and that all the Regional Tax Offices were F.B.R.'s subordinate offices. Order dated 01.07.2011 passed by this Court shows that the appellant was not granted any interim relief on the ground that he had approached this Court without availing the alternative remedy provided by law. I shall discuss the outcome of the said writ petition at a later stage in this judgment. 7. On 08.06.2011, the appellant had filed an application before F.P.S.C., seeking withdrawal of the decision regarding the rejection of his candidature. Letter dated 30.06.2011 issued by F.P.S.C. shows that the appellant's review petition dated 08.06.2011 had been turned down. Under Section 7(3)(d) of the 1977 Ordinance, the appellant had a period of thirty days to file an appeal before this Court against the said letter dated 30.06.2011. The appellant did not file an appeal within the limitation period provided by law. In the meanwhile, F.P.S.C. had completed the process of appointing fifty (50) Section Officers (BS-17) pursuant to the advertisement dated 04.10.2010. This is where the matter regarding S.O.P.E.-2010 took a pause. SECTION OFFICERS' PROMOTIONAL EXAMINATION-2012: 8. On 15.07.2012, F.P.S.C. issued another advertisement, informing the public that Section Officers' Promotional Examination-2012 ("S.O.P.E.-2012") for fifty (50) posts was scheduled to be held between 11.12.2012 and 14.12.2012. As per this advertisement, employees of "All Subordinate Offices such as Customs/Central Excise and Income Tax including field offices of the F.B.R." were not eligible to take part in the said examination. 9. Vide letter dated 03.05.2013, F.P.S.C. informed the appellant that he was not eligible for the said examination on account of being an employee of a subordinate office. The appellant was given an opportunity to file a representation against the rejection of his candidature within a period of thirty days. It is an admitted position that the appellant's representation against the rejection of his candidature was rejected and so was the appellant's review petition. 10. The appellant had preferred an appeal (F.A.O.No.400/2013) before the Hon'ble Lahore High Court against F.P.S.C.'s orders dated 18.07.2013 and 07.08.2013, whereby his representation and review petition were rejected on the ground that he was an employee of a subordinate office and therefore not eligible for S.O.P.E.-2012. The said appeal was clubbed with other writ petitions and they were all allowed by the Hon'ble High Court, vide judgment dated 20.12.2013. The condition in the said advertisement making the employees of "all subordinate offices such as Customs/Central Excise and Income Tax including field offices of the F.B.R." ineligible for S.O.P.E., 2012 was declared illegal and unlawful. The appellant and the other petitioners were declared eligible to appear in the said examination, and entitled to be treated at par with that of other employees working in F.B.R., whether at the headquarters or in the field offices. Civil Appeals Nos.599 to 602/2014, filed by F.P.S.C. against the said judgment dated 20.12.2013, were dismissed by the Hon'ble Supreme Court, vide order dated 21.11.2014. F.P.S.C.'s review petition against the said order was also dismissed by the Hon'ble Supreme Court, vide order dated 26.03.2015. 11. While F.P.S.C.'s review petition was pending, F.P.S.C., vide letter dated 15.01.2015, issued the appellant's result/marks sheet for S.O.P.E.-2012. As per this result, the appellant had passed the said examination with 197 marks. It is an admitted position that after this the appellant failed in the interview. This is where the matter regarding S.O.P.E.-2012 ended. RE-AGITATION OF THE MATTER REGARDING SECTION OFFICERS' PROMOTIONAL EXAMINATION-2010: 12. Vide letter dated 13.04.2015, the appellant applied to the Chairman, F.P.S.C. that the rejection of his candidature for S.O.P.E., 2010 may be recalled on the basis of the judgment dated 20.12.2013, passed by the Hon'ble Lahore High Court and the order dated 21.11.2014, passed by the Hon'ble Supreme Court. The appellant's stance was that since the appellant's candidature for S.O.P.E., 2010 was rejected solely on the ground that he is ineligible on account of being an employee of a subordinate office and since the Hon'ble Lahore High Court and the Hon'ble Supreme Court had concurrently declared such a condition/ineligibility to be illegal and unlawful, the rejection of the appellant's candidature for S.O.P.E., 2010 ought to be recalled. The appellant's said letter dated 13.04.2015 was not graced with a response by F.P.S.C. 13. Writ Petition No.1783/2011 (to which reference has been made in paragraph 6 of the judgment) came up for hearing before this Court after a few years. Vide judgment dated 17.03.2016, the said petition was dismissed by the learned Judge-in-Chambers and so was the appellant's intra Court appeal No.163/2016, vide judgment dated 13.12.2017. The said concurrent judgments of this Court were assailed by the appellant in Civil Appeal No.160/2018, which was "dismissed as not pressed" vide order dated 25.04.2018 passed by the Hon'ble Supreme Court. In the said order, it was observed that the appellant may file an appeal before the High Court in terms of the 1977 Ordinance and that the High Court, while hearing the appeal, shall not be influenced by the observations made in the judgments of this Court which had been assailed by the appellant before the Hon'ble Supreme Court. Furthermore, it was observed that "the application for condonation of delay will also be given sympathetic consideration." 14. On 15.05.2018, the appellant filed the instant appeal, impugning F.P.S.C.'s letters dated 28.05.2011 and 30.06.2011, whereby his candidature for S.O.P.E., 2010 was rejected on the ground that since he was an employee of a subordinate office, he was ineligible to appear in the said examination. Along with the instant appeal, the appellant has filed an application for condonation of delay under Section 5 of the Limitation Act, 1908 ("the Limitation Act"). CONTENTIONS OF THE APPELLANT:- 15. The appellant appeared in-person, and after ably narrating the facts leading to the filing of the instant appeal, submitted that F.B.R. is an attached department of the Revenue Division in terms of Schedule-III, Serial No.89B of the Rules of Business, 1973; that the appellant is an employee of the Regional Tax Office (Inland Revenue); that as per F.B.R.'s letter dated 21.04.2011, F.B.R. is an attached department of the Revenue Division and the Regional Tax Offices are F.B.R.'s subordinate offices; that for the first time, it was through F.P.S.C.'s letter dated 19.05.2011 that the appellant was informed that his candidature for appointment as Section Officer (BS-17) had been rejected; that prior to this, the appellant had not filed any representation before F.P.S.C.; that the said letter dated 19.05.2011 was a stereotype letter issued by F.P.S.C. without any application of mind; that F.P.S.C.'s letter dated 21.05.2011 was received by the appellant on 25.05.2011, since he was serving at Lahore; that F.P.S.C., instead of treating the appellant's letter dated 08.06.2011 as a representation, treated it as a review petition; and that the appellant had never filed a review petition before F.P.S.C. against the rejection of his candidature. 16. The appellant further submitted that after the Hon'ble Lahore High Court and the Hon'ble Supreme Court had concurrently declared the condition of making the employees of all subordinate offices such as Customs/Central Excise and Income Tax including field offices of the F.B.R." as ineligible for S.O.P.E.-2012 to be illegal and unlawful, the appellant's candidature for the said exam was restored; and that even though the appellant was not able to pass the interview for his appointment as Section Officer (BS-17) after S.O.P.E.-2012, he was entitled to be interviewed in the process for appointment as Section Officer (BS-17) after S.O.P.E.-2010. The appellant prayed for the appeal to be allowed and for F.P.S.C. to be directed to interview the appellant for appointment as Section Officer (BS-17) pursuant to the process initiated through advertisement dated 04.10.2010 with respect to S.O.P.E.-2010. CONTENTIONS FOR THE LEARNED ASSISTANT-ATTORNEY GENERAL:- 17. On the other hand, learned Assistant Attorney-General raised an objection to the maintainability of this appeal on the ground that the appeal was grossly time barred; that under Section 7(3)(d) of the 1977 Ordinance, the appellant had thirty days to file appeals against the orders impugned in the instant appeal; that the instant appeal has been filed with a delay of six years; and that since the limitation period for filing an appeal is provided in a special law, (i.e. the 1977 Ordinance) delay in filing the appeal cannot be condoned under Section 5 of the Limitation Act as the said Section does not apply where the limitation period is prescribed in a special statute. In making his submissions, learned Assistant Attorney-General placed reliance on the cases of Muhammad Amir v. Muhammad Sarfraz (2019 CLD 523), Muhammad Khalid Naeem v. Habib Bank Limited (2018 CLD 1027), Raja Karamat Ullah v. Sardar Muhammad Aslam Sukhera (1999 SCMR 1892), Noor Muhammad v. Assistant Commissioner, Vehari (1986 SCMR 292) and Abdul Aziz v. Additional Settlement Commissioner (1984 SCMR 1562). 18. He further submitted that the appellant had appeared in the written examination, i.e. S.O.P.E.-2012, and after obtaining relief from the Hon'ble Lahore High Court as well as the Hon'ble Supreme Court, the appellant appeared in the interview, which he failed; that after the appellant failed the said interview, the matter regarding S.O.P.E.-2012 became a past and closed transaction; that as regards S.O.P.E.-2010, indeed ineligibility criteria on the basis of which the appellant's candidature was rejected was again adopted for S.O.P.E.-2012 and the said ineligibility criteria was declared illegal and unlawful by the Hon'ble Lahore High Court as well as the Hon'ble Supreme Court; that the appellant had not challenged the said ineligibility criteria when it was made applicable for S.O.P.E., 2010, therefore, the rejection of the appellant's candidature with respect to S.O.P.E., 2010 did not suffer from any legal infirmity; and that the time consumed by the appellant in challenging the rejection of his candidature for S.O.P.E., 2012 cannot be excluded while computing the limitation period for filing an appeal against the rejection of his candidature for participation in S.O.P.E., 2010. Learned Assistant Attorney-General prayed for the appeal to be dismissed. REJOINDER ON BEHALF OF THE LEARNED COUNSEL FOR THE APPELLANT:- 19. In rejoinder, Sayyid Murtaza Ali Pirzada, learned counsel for the appellant, submitted that even though the application for condonation of delay was filed under Section 5 of the Limitation Act, it may be treated as an application under Section 14 of the said Act; that the appellant had been diligently pursuing his remedy regarding the unlawful ineligibility criteria for S.O.P.E., 2012 before the Hon'ble Lahore High Court and the Hon'ble Supreme Court; that since the appellant had appeared in the written test, (i.e. S.O.P.E., 2012) and had also challenged the unlawful ineligibility criteria due to which his candidature for the said examination had been rejected, there was no purpose in filing an appeal against the rejection of his candidature for S.O.P.E., 2010 before the said ineligibility criteria which was common for both S.O.P.E., 2010 and S.O.P.E.-2012 was declared illegal and unlawful by the Hon'ble Lahore High Court as well as the Hon'ble Supreme Court. Learned counsel for the appellant prayed for the application for condonation of delay to be allowed and for the appeal to be allowed on merits. 20. I have heard the contentions of the appellant, his learned counsel and the learned Assistant Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 14 above and need not be recapitulated. 21. Section 7(3)(a) of the 1977 Ordinance provides that a candidate aggrieved by any decision of F.P.S.C. may, within thirty days of such decision, make a representation to F.P.S.C. which shall decide the representation within fifteen days after giving the candidate a reasonable opportunity of hearing. Furthermore, it is provided that the decision of F.P.S.C, subject to the result of a review petition, shall be final. Section 7(3)(b) of the said Ordinance provides that a candidate aggrieved by the decision of F.P.S.C. made under Section 7(3)(a) of the said Ordinance may, within fifteen days of the decision, submit a review petition to F.P.S.C. which shall decide the review petition within thirty days under intimation to the petitioner. Section 7(3)(d) of the said Ordinance provides that any candidate aggrieved by a decision of F.P.S.C. under Section 7(3)(b) of the said Ordinance may, within thirty days of the decision, prefer an appeal to the High Court. 22. As mentioned above, the appellant's candidature for S.O.P.E., 2010 was rejected by F.P.S.C. Vide letter dated 21.05.2011, F.P.S.C. had informed the appellant that his candidature had been rejected due to lack of "all attested documents". The appellant was also informed that his personal hearing was scheduled for 25.05.2011. F.P.S.C., vide letter dated 21.05.2011, informed the appellant that he had been found ineligible for S.O.P.E.-2010 since the department in which he was working was a subordinate office. In this letter, the appellant was also informed that his personal hearing was scheduled for 25.05.2011. It is not disputed that the appellant appeared for personal hearing on the said date. After this, F.P.S.C., vide letter dated 28.05.2011, informed the appellant that his candidature had been rejected since he was ineligible on account of being an employee of F.B.R.'s subordinate office, i.e. Regional Tax Office, Lahore. Furthermore, the appellant was informed that he could file a review petition within a period of fifteen days. 23. On 08.06.2011, the appellant addressed a letter to the Assistant Director, F.P.S.C., asking for the decision to reject his candidature to be withdrawn. If this letter is to be treated as a representation under Section 7(3)(a) of the 1977 Ordinance, the same was decided against the appellant, vide F.P.S.C.'s letter dated 30.06.2011. Even though F.P.S.C., in the said letter dated 30.06.2011, termed the appellant's letter dated 08.06.2011 as his review petition, the fact remains that the appellant did not take issue with this or inform F.P.S.C. that he had not filed any review petition. The appellant could have asserted that F.P.S.C.'s decision dated 28.05.2011 was not on the appellant's representation under Section 7(3)(a) of the 1977 Ordinance. He could also have filed a review petition against F.P.S.C.'s letter dated 30.06.2011 and asserted therein that F.P.S.C.'s decision dated 30.06.2011 was not on the appellant's review petition under Section 7(3)(b) of the said Ordinance, but on his representation dated 08.06.2011 under Section 7(3)(b) of the said Ordinance. The appellant did neither of these. 24. Be that as it may, an appeal under Section 7(3)(d) of the 1977 Ordinance before the High Court can be filed only against F.P.S.C.'s decision on a candidate's review petition. Since the appellant has filed the instant appeal under Section 7(3)(d) of the said Ordinance, it would be safe to consider F.P.S.C.'s decision in its letter dated 30.06.2011 (which has been impugned in this appeal) to be a decision on the appellant's review petition. In the said letter, it has explicitly been mentioned that the appellant's review petition dated 08.06.2011 was considered by F.P.S.C. and the same was turned down. 25. Now, F.P.S.C.'s decision dated 30.06.2011 was assailed by the appellant after almost six years, whereas the limitation period prescribed for filing an appeal before this Court in Section 7(3)(d) of the 1977 Ordinance, is thirty days. 26. The appellant, in his application for condonation of delay filed under Section 5 of the Limitation Act, took the plea that ever since the passing of F.P.S.C.'s order dated 30.06.2011, he had been prosecuting his case in good faith before this Court as well as the Hon'ble Supreme Court, and that the period consumed in the appellant's said endeavor should be excluded from the limitation period prescribed under Section 7(3)(d) of the 1977 Ordinance for filing an appeal before this Court. The appellant also stressed that this Court ought to bear in mind the observations of the Hon'ble Supreme Court, in its order dated 25.04.2018, and give "sympathetic consideration" to the appellant while deciding his application for…

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